Gonzales, Press Freedoms and the Public's Right to Know
Evaluation of the likely impact of Attorney General Nominee Alberto Gonzales on Press Freedoms and the Public's Right to Know
Evaluation of the likely impact of
Prepared by The Reporters Committee for Freedom of the Press
Every attorney general has a significant impact on the media's ability to gather and report news, as well as the public's right to know what its government is doing. The Reporters Committee staff researched Mr. Gonzales' performance as a judge on the Texas Supreme Court from January 1999 to December 2000 and as White House counsel since January 2001.
Gonzales, a 1982 graduate of Harvard Law School, was the first Hispanic to be named a partner at the Texas law firm of Vinson & Elkins. It was here that Gonzales developed friendships with GOP colleagues and decided to become a Republican, the Houston Chronicle reported June 21, 2003. "You have to remember in my current job, I am an advocate for a client who has an agenda," Gonzales said. "And my job is to make sure the president has the tools he needs to pursue that agenda. So there may be some things the president wants that I personally disagree with. I will confess I think those instances are rare."
Gonzales was instrumental in getting Bush excused from jury duty in 1996 -- a move that allowed the governor to avoid having to disclose that he had been arrested for drunken driving in Maine in 1976, the Chronicle reported. Bush was able to keep it a secret until the final days of his 2000 presidential campaign.
Robyn Blumner of the St. Petersburg Times wrote on June 1, 2004, that there is "perhaps no figure who has his fingerprints on more shortsighted, backward and counterproductive Bush administration policies than does White House Counsel Alberto Gonzales."
"He has been a major advocate of virtually untrammeled presidential prerogatives," said Elliot Mincberg, general counsel for People for the American Way.
I. Gonzales' Interpretation of Executive Privilege.
Alberto Gonzales has been an active defender of what is best described as a quasi-executive privilege, invoked repeatedly by the Bush administration in attempts to keep government information from public scrutiny. Gonzales believes that the executive branch's effectiveness hinges on the president's ability to communicate confidentially with his advisers without fear that they will later testify about those conversations.
The quasi-executive privilege is so named because the privilege's breadth, as defined by the Bush administration, is much greater than what is commonly known by lawyers as the executive privilege. When outgoing Attorney General John Ashcroft cited the privilege as grounds for his refusal to release Gonzales' August 2002 torture memo to the Senate Judiciary Committee, Sen. Richard Durbin (D-Ill.) responded, "With all due respect . . . you are not citing a law and you are not claiming executive privilege."
Despite the novelty of quasi-executive privilege, Gonzales supported its invocation against commission requests for official testimony and government documents. The National Commission on Terrorist Attacks Upon the United States was chartered by legislation to study the circumstances surrounding the terrorist attacks of Sept. 11, 2001, and the United State's preparedness for and response to those attacks.
When the commission requested sworn testimony from National Security Adviser Condoleezza Rice, Gonzales said in a March 25, 2004, letter to its chairman and vice chairman that to permit Rice to testify under oath would abridge President Bush's ability to receive candid advice from his advisers, and would violate the constitutional separation of powers. Throughout history, however, executive privilege has not been used to justify cabinet heads' refusal to testify before congressional committees; rather, cabinet heads have cited it in response to specific questions during testimony.
Eventually, the Bush administration permitted Rice to testify. Former Bush adviser Richard Clarke had criticized the administration's counter-terrorism efforts before the commission, and Rice's testimony was needed to defuse the resulting scandal. The Bush administration's capitulation, however, did not go without a second Gonzales letter to the chairman and vice chairman, on March 30, 2004, in which he cautioned that the Bush administration's belief in the quasi-executive privilege remained inviolate. Rice's testimony would occur "only with recognition that the events of September 11, 2001, present the most extraordinary and unique circumstances, and with conditions and assurances designed to limit harm to the ability of future presidents to receive candid advice," Gonzales said.
During her testimony, Rice discussed an Aug. 6, 2001, Presidential Daily Briefing (PDB) in which the CIA warned President Bush about an impending al Qaeda attack on the United States. Its title was "Bin Laden Determined to Strike in U.S."
Rice's testimony piqued the commission's interest in the Aug. 6 PDB and it requested a copy from the White House, reigniting a freedom of information dispute that had already been percolating with Gonzales. The commission had earlier requested 360 of the daily CIA reports to the president from the White House dating back to the Clinton Administration, and Gonzales largely refused access. In an attempt to compromise, Gonzales granted extremely limited access to 24 PDB's; selected commission members could look at them and create summary reports for their colleagues.
Gonzales argued that the Aug. 6 PDB, like the 360 others requested before it, was protected by executive privilege. PDB's were the "crown jewels" of executive privilege, according to Gonzales, and their release would destroy a president's ability to receive highly sensitive intelligence matter in confidence.
Observers noted that the Bush White House had undermined Gonzales' privilege argument two years earlier by having granted extraordinary PDB access to Washington Post reporter Bob Woodward while he was writing his book "Bush at War," a tome that had direct quotes from PDB's. Another obstacle Gonzales faced in his claim of PDB privilege was that historically, PDB classification had never been as absolute and irreversible as he implied.
Intense public demand for access to the Aug. 6 PDB, prompted the White House to declassify it on April 10, 2004.
In another uses of executive privilege, Gonzales recommended its use to prevent the House Government Reform Committee from seeing documents pertaining to three criminals pardoned by President Bill Clinton.
Gonzales recommended that Congress not be allowed to see documents related to the prosecutor's decision-making process. He further recommended Bush claim executive privilege if House Government Reform Committee subpoenaed memos or tried to question Attorney General John Ashcroft about the pardons.
Gonzales submitted an affidavit contending that executive privilege covers not only advice given to a president about individual pardons, but also government papers the president has never seen and officials he has never talked to, such as the sentencing judge in a specific case. Executive privilege was previously recognized for the president and advisers who work in the White House. Gonzales supported extending the privilege to people far down the chain of command who are only asked for input about pardon requests.(Contra Costa Times 8/27/02)
II. Gonzales' First Amendment Record While on the Texas Supreme Court.
Gonzales served as a justice on the Texas Supreme Court from Jan. 14, 1999 to Dec. 22, 2000. He was appointed Nov. 12, 1998 by then-Gov. George W. Bush to complete the unexpired term of Justice Raul A. Gonzalez, who retired as of January 1999. Gonzales won election to his seat on the bench in November 2000, but resigned the following month to become White House counsel.
Online legal research shows that during his brief tenure on the Texas Supreme Court, Gonzales authored some 13 opinions, none of which apparently concerned First Amendment issues. Gonzales joined the majority in upholding the rights of the media -- while in some cases also declining to adopt increased protections recognized in other jurisdictions -- in all four Texas Supreme Court decisions involving free press or freedom of information issues that were published during his tenure.
Gonzales also wrote a lengthy concurring opinion in another First Amendment-related case, in which he explained why punishing the unknowing violation of Texas campaign-spending laws did not offend free speech -- while adding that the laws' "cumbersome and complicated" reporting requirements, if challenged in future cases, might violate the First Amendment.
In two libel cases, the court declined to recognize additional protections for media defendants, but nonetheless sided with the media party on the merits of the case.
In Huckabee v. Time Warner Entertainment Co., 19 S.W.3d 413 (Tex. 2000), a family court judge sued over an HBO documentary that he claimed falsely portrayed him as a "good ole boy" who awarded custody of children to husbands accused of child abuse. The trial court denied summary judgment for the media and would have sent the case to trial, but the state appeals court reversed. In an opinion written by Chief Justice Tom Phillips and joined by Gonzales, the Supreme Court held that the traditional summary judgment standard -- whether there is sufficient evidence of a claim -- was applicable, rather than the higher standard of "clear and convincing" evidence. The higher standard, which is required during the trial when the case involves a public official, makes it more difficult for a public official to prevail in a libel suit. Phillips wrote that the higher standard as adopted by the U.S. Supreme Court was "based merely on federal procedure," not the First Amendment, and therefore did not bind state courts.
But in Huckabee, the court then ruled that even under the traditional standard, the plaintiff failed to establish actual malice -- knowledge of falsity or reckless disregard for the truth -- on the part of the media defendants. It therefore dismissed the case.
In Turner v. KTRK Television, Inc., 38 S.W. 3d 103 (2000) -- decided the day before Gonzales left the court -- a lawyer who was running for mayor had sued a news reporter and television station over their story questioning his role in an attempted multimillion-dollar life insurance scam. The Texas Supreme Court, in an opinion written by the court's then-Chief Justice Phillips and joined by Gonzales, held that a claim for defamation may be based on an entire publication or broadcast, as opposed to specifically identifiable false statements. Claims based on the entirety of a publication are more difficult for the media to defend.
However, Phillips wrote, while the plaintiff proved the story as a whole was false and defamatory, he nevertheless failed to show clear and convincing evidence that the defendants acted with actual malice -- knowing the broadcast would mislead viewers. The high court therefore affirmed the Court of Appeals' judgment for the media.
Attorney Robert P. Latham of Jackson Walker in Dallas, who represented the media defendants in Turner, said Gonzales seemed to take a "very studious and moderate approach" during oral arguments in the case. Latham said he did not believe Gonzales had had enough experience with First Amendment questions to form a "doctrinaire" response to them leaning toward one side or the other.
"I don't think [Gonzales] has great familiarity with [First Amendment] issues, which is perhaps why in the Turner case, he was a very interested participant in the oral argument," Latham observed. "But that can also indicate he has a natural tendency to try to get to the essence of the issue in a very conscientious manner."
The first media law opinion that Gonzales joined as a Texas Supreme Court justice concerned the right of access to judicial records. In In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999), the court vacated a previous order that shielded from the public all records of the court's Unauthorized Practice of Law Committee. The court deemed such documents to be judicial records and as such, subject to a new rule that generally required them to be disclosed upon request.
Similarly, in City of Garland v. The Dallas Morning News, 22 S.W.3d 351 (Tex. 2000), the court held that a draft memorandum by a city manager to the city council regarding the possible firing of the city finance director was public information, not exempt from disclosure by an exception to the state Public Information Act.
Gonzales wrote a concurring opinion in Osterberg v. Peca, a First Amendment-related case in which four other justices dissented from the majority opinion upholding the constitutionality of a statute that penalized violation of campaign-disclosure laws. In his concurrence, Gonzales wrote that the issue before the court was not merely whether the penal statute prevented the defendants from exercising their First Amendment right to make campaign "expenditures." The broader question, according to Gonzales, was whether the application of the law was constitutional.
"Imposing liability on an unknown violator has the indirect effect of penalizing core First Amendment speech," Gonzales observed.
He called public discourse and debate on a political candidate's fitness for office "integral to the operation of the system of government established by our Constitution," citing a U.S. Supreme Court decision involving campaign-spending laws, Buckley v. Valeo. "Thus, a limitation on this core First Amendment speech will be constitutional only if the limitation passes exacting scrutiny as articulated in Buckley. In other words, the limitation must bear a sufficient relationship to a substantial state interest."
Gonzales concluded that the statute was constitutional, after balancing the government's "significant" interests in mandating disclosure of election-campaign spending against the burdens such requirements impose on free speech. He reasoned that punishing only those who knew they were breaking campaign-finance laws would weaken the law's effectiveness, while enforcing the reporting requirements against everyone "provides incentive to learn what the regulations require and to abide by them."
But Gonzales voiced concern about an issue not presented in Osterberg, and thus not decided by the court: the constitutionality of the complexity of the law's disclosure requirements. He set forth numerous provisions of the state Election Code -- some of which were "not very lucid" -- and noted their potential chilling effect on laymen trying to interpret and comply with them.
The Texas "Election Code's reporting requirements are cumbersome and complicated. As a result, the Election Code may deter ordinary citizens from disseminating their own views," Gonzales concluded. "This raises the question, yet unanswered by the United States Supreme Court, of whether a set of disclosure requirements can be so onerous that they violate the First Amendment."
III. Gonzales' Involvement in Reporter's Privilege Cases.
Not much is known about Gonzales 's involvement in the grand jury investigation into apparent White House leaks of the identity of CIA undercover operative Valerie Plame.
The Department of Justice notified the White House that it was opening a criminal investigation at 8:30 p.m. on Monday, Sept. 29, 2003. Gonzales was one of the people initially notified that night, but with Justice Department permission did not notify the rest of the White House -- including the President -- until Tuesday morning. On Tuesday, Gonzales distributed memos to all White House staff telling them to preserve anything they had concerning Plame or contacts with several journalists, including newspaper columnist Robert Novak, who had identified Plame in a column.
Gonzales was responsible for vetting all information turned over by White House staff in order to assert executive privilege, but he later told staff that attorney-client privilege would not be used to protect information disclosed to him. He was responsible for making sure the White House complied with the Justice Department requests.
Gonzales did not advise or represent Bush in the investigation, and was not with him when he testified. Gonzales testified before the grand jury on June 18, 2004. The White House confirmed that he testified, but would not discuss what he testified about.
Legal observers are concerned about two issues in connection with this case: First, even though an independent prosecutor has been appointed, a witness in the investigation will now be the head of the investigating body. After the investigation is over, special prosecutor Patrick Fitzgerald will still work for the Justice Department -- as a U.S. attorney in Chicago -- and, therefore, Gonzales will be his boss. Second, this investigation and any indictments may go very high up into the Bush administration, and Gonzales is very close to the administration.
IV. Gonzales' Advice to the President Regarding:
A. Presidential Papers
Gonzales has played a key role in keeping presidential records out of the public eye and asked for several extensions to deadlines for turning over papers of past presidents.
Gonzales said the Bush administration would need more time than allowed to review the records of former President Ronald Reagan and to consult with advisers of former Presidents Ronald Reagan, George Bush and Bill Clinton. The Presidential Act of 1978 says the papers of future Presidents are to be handed over to professional government archivists and ultimately to the public after 12 years.
Gonzales wrote in August 2001 that the extensions have "been necessary for this Administration to review the many constitutional and legal questions raised by the potential release of sensitive and confidential presidential records and to decide the proper legal framework and process to employ in reviewing such records."
Gonzales' involvement with presidential papers began in January 2001 when the 12 years ended for release of some 68,000 papers of President Ronald Reagan. The White House asked for more time to review the papers. Twice that year -- in March and in June -- the White House asked for more extensions.
In August 2001, the Bush administration didn't offer a specific deadline for a third requested extension. Gonzales said the administration would need "several weeks" to review the records and to consult with advisers of former Presidents Reagan, Bush and Clinton.
President Bush issued an executive order in November 2001 that gave himself -- as well as former presidents -- the right to veto requests to open any presidential records. Even if a former president wants his records to be released, the executive order permits Bush to exercise executive privilege. It also gives him and former presidents an indefinite amount of time to ponder any requests
Bush's executive order 13233, which also applies to vice presidents, openly violates the Presidential Records Act passed in Congress in 1978. The White House has argued that these new restrictions balance public access with "national security concerns." National security documents can already excluded from public scrutiny under an exemption to the Freedom of Information Act.
Former President Clinton opposes Bush's executive order and has said he wants the public to have full access to his papers.
Gonzales said the White House did not create any new privileges or obstacles but "simply implemented an orderly process to deal with this information."
Critics contend that Bush issued the executive order because the White House is worried about what the Reagan and George H.W. Bush papers may reveal about officials who worked in those administrations and are now part of George W. Bush's inner circle, including Secretary of State Colin Powell, Vice President Richard Cheney, White House Chief of Staff Andrew Card, and Budget Director Mitch Daniels. Gonzales said embarrassing documents among the presidential papers would not be considered a legitimate reason to withhold archives from historians and journalists.
A coalition of open-government advocates and historians -- including The Reporters Committee for Freedom of the Press -- filed lawsuit in federal court in November 2001 arguing for release of the presidential papers. The lawsuit is pending.
In January 2002, the White House announced plans to release 8,000 pages from the Ronald Reagan presidency.
Earlier this year, Gonzales also pressured the nation's archivist, John Carlin, to resign, according to Sen. Carl Levin (D-Mich.). Carlin's departure -- he resigned without giving a reason -- sparked speculation that he was forced out in order to protect the records of the first President Bush. The position is traditionally non-partisan and can change hands when the archivist either resigns for is removed by the president. To be removed by the president, a reason must be given to Congress. Levin thinks Gonzales asked Carlin to resign so the administration would not have to disclose why it wanted him removed from the position.(Library Journal 9/1/04)
B. Bush's Gubernatorial Records
Gonzales also advised Bush in 2001 when the president and Gov. Rick Perry of Texas attempted to defeat the Texas Public Information Act. Perry helped the new President keep his papers from his 1995-2000 tenure as Texas governor out of the hands of journalists and scholars. In a memo Gonzales wrote to then Gov. Bush, he said: "We could pursue legislation to give the [State library and Archives] Commission the authority to allow public records to be stored at special facilities, such as presidential libraries, without requiring the operator of the facility to be subject to each and every law or regulation of the state."
Once all of Gov. Bush's files are cataloged, they will go where Bush wants them and will likely be out of the public eye.
V. Gonzales' Involvement in the White House Refusal to Release Information about the Cheney Energy Task Force.
While serving as Bush's lead counsel in the White House, Gonzales picked one battle in particular to doggedly fight: that the president and those working closely with him must be able to receive counsel from advisers without public inquiry. Gonzales argued throughout the summer of 2002 that Vice President Cheney and the records of his energy policy task force should not be subject to open-government laws. The tug-of-war between Gonzales and the Senate Governmental Affairs Committee, led by Sen. Joseph Lieberman (D-Conn.) eventually forced the White House to hand over about 2,100 pages of documents. However, full disclosure of the records of the task force, including its members, has not yet been given. The U.S. Supreme Court refused to order the Bush administration to make the details public and, instead, sent the case back down to a lower court where an outcome has yet to be decided.
The Supreme Court refused June 24, 2004, to order the Bush administration to make public secret details of Vice President Cheney's National Energy Policy Development Group, but kept the case alive by sending it back to a lower court.
The Supreme Court held that a lower court acted "prematurely" when it rejected Vice President Cheney's request to block disclosure of records from the energy policy task force, The New York Times reported. The high court voted 7-2 to send the case back to a federal appeals court.
Two organizations -- Judicial Watch and Sierra Club -- had sued Cheney and the energy task force to force it to comply with the Federal Advisory Committee Act, an open-government law.
The Act does not apply to committees composed entirely of federal officials, but the plaintiffs argued that officials of Enron and other private energy companies had played such an active role in the group's deliberations that they should be considered as de facto members, bringing the task force within the disclosure law.
Gonzales had been sparring with congressional Democrats seeking access to the records of Cheney's energy task force, according to the Austin American-Statesman. Gonzales has argued that the president must be able to receive counsel from advisers without public probing.
Gonzales claimed that "procedures to safeguard the security and confidentiality of these documents" justified the administration's decision not to turn over the material to the Senate, according to a Democratic National Committee press release June 4, 2002.
Gonzales contended that his investigation has not revealed an instance of White House officials attempting to help Enron out if "its financial difficulties prior to bankruptcy," according to the press release.
Dow Jones reported that in a letter to Sen. Joseph Lieberman ( D-Conn.), chairman of the Senate Governmental Affairs Committee, Gonzales wrote that energy task force documents reviewed so far show that White House officials' actions were "responsible and consistent with the appropriate performance of their official duties."
Paul Krugman of The New York Times wrote on June 10, 2002, that Gonzales was "pulling the same trick on energy policy that Dick Cheney has pulled on anti-terrorist policy: Respond to real, serious questions about the administration's actions by self-righteously denying charges that nobody is actually making."
The White House gave the Senate committee more than 2,100 pages of documents under twin subpoenas issued by the panel May 22, but they arrived several hours after its already-extended noon deadline had passed, Dow Jones reported on June 10, 2002.
Before President Bush was sedated for two hours during a routine colonoscopy in June 2002, it was Gonzales who made sure that the president signed a letter temporarily transferring his power to Cheney, and it was Gonzales who specified the precise moment when the president resumed power, Legal Times reported Dec. 23, 2002.
VI. Gonzales' Involvement in Recommending Against Release of Information about Guantanamo Detainees.
On Jan. 25, 2002, Gonzales sent President Bush a now infamous memorandum regarding applicability of the 1949 Geneva Conventions prisoner-of-war guidelines to the conflict with al-Qaida and the Taliban.
In the memo -- which was not made public until Newsweek broke a story on it more than two years later -- Gonzales advised Bush that detainees in U.S. custody in Afghanistan and Iraq do not qualify as prisoners of war.
"In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions," the Gonzales memo reads in part.
After news broke about prisoner abuse at Iraq's Abu Ghraib prison, The New York Times and others reported that the White House had ignored requests from the Senate Armed Services Committee for a full record of documents regarding prisoner treatment.
On June 3, shortly after the Newsweek story, Democratic Reps. John Conyers of Michigan, Henry Waxman of California and other ranking Democrats wrote Bush asking for 35 documents, including the Jan. 25, 2002 Gonzales memo.
Facing allegations that it authorized the use of torture to gain information from al-Qaida and Taliban detainees, the Bush administration on June 23 released the memo amid hundreds of pages of documents detailing the administration's debates and decisions about the use of torture.
In a rare appearance at a news conference that day, Gonzales hinted that secrecy would remain the norm for related documents.
"The government is releasing an extraordinary set of documents today, and this should not be viewed as setting any kind of precedent," Gonzales said. "But we felt it important to set the record straight. Additional documents may be withheld in the future for national security and other reasons."
Two days later, ABC News' Peter Jennings did a special report on detainees in U.S. custody and reported that the White House allowed only 12 minutes for an interview with Gonzales.
"We have believed since the beginning of this project that the Bush Administration should have an opportunity to state the President's case. We have tried since early on to engage the Administration," Jennings told viewers. "In late May, we were told that we could have 12 minutes with the President's lawyer, Alberto Gonzales. We said this was not enough time for a serious discussion. And we were told that's all we'd get. We were unable to reach a compromise before we ran out of time."
VII. Gonzales' Recommendations Regarding Secret Tribunals for Guantanamo Detainees.
On Nov. 13, 2001, President George W. Bush signed a military order allowing suspected terrorists to be tried in military tribunals rather than regular courts.
One week later, The New York Times published an op-ed piece by Gonzales defending the use of the tribunals. Gonzales claimed that in appropriate circumstances, the commissions offer significant advantages over civilian trials.
"They spare American jurors, judges and courts the grave risks associated with terrorist trials. They allow the government to use classified information as evidence without compromising intelligence or military efforts. They can dispense justice swiftly, close to where our forces may be fighting, without years of pretrial proceedings or post-trial appeals. And they can consider the broadest range of relevant evidence to reach their verdicts."
Reading the piece today -- the same week a federal judge declared the commissions illegal for among things, denying "enemy combatants" access to evidence and excluding them from some commission sessions -- Gonzales' idealistic defense of the tribunals sounds at best naive, if not disingenuous.
"Military commission trials are not secret," Gonzales wrote. "The president's order authorizes the secretary of defense to close proceedings to protect classified information. It does not require that any trial, or even portions of a trial, will be conducted in secret. Trials before military commissions will be as open as possible, consistent with the urgent needs of national security. The specter of mass secret trials, as depicted by critics, is not an accurate reflection of the order or the president's intent.
"The order specifically directs that all trials before military commissions will be 'full and fair.' Everyone tried before a military commission will know the charges against him, be represented by qualified counsel and be allowed to present a defense."
VIII. Gonzales is not Likely to Rewrite the "Ashcroft" FOIA Memorandum
In October 2001, Attorney General John Ashcroft, following the pattern of previous new administrations, issued a memorandum designed to give guidance to government Freedom of Information Act officers. Gonzales is not likely to revoke or modify the directive.
Although the attorney general typically sets FOI policy for the federal government, the memorandum of guidance has not historically been changed within an administration with a switch in the attorney general. Ashcroft's guidance refuted his predecessor Janet Reno's direction that where discretion could be used agencies should make information available unless they could point to some harm that the disclosure would cause. Ashcroft instead assured agencies that the Justice Department would defend the use of exemptions.
There is no indication that Gonzales was involved in drafting the Ashcroft FOI instruction, but there is also no indication that he disagrees with it.